I 

118TH CONGRESS 

2D SESSION H. R. 9096 

To establish pharmacy payment and reimbursement by pharmacy benefits 

managers; to amend title XIX of the Social Security Act to improve 

prescription drug transparency; and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JULY 23, 2024 

Mr. AUCHINCLOSS (for himself and Mrs. HARSHBARGER) introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Committees on Ways and Means, Oversight 

and Accountability, and Armed Services, for a period to be subsequently 

determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned 

A BILL 

To establish pharmacy payment and reimbursement by pharmacy benefits managers; to amend title XIX of the Social 

Security Act to improve prescription drug transparency; 

and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Pharmacists Fight 

5 Back Act’’. 


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1 SEC. 2. PHARMACY PAYMENT AND REIMBURSEMENT. 

2 (a) IN GENERAL.—A pharmacy benefits manager 

3 (hereinafter referred to as a ‘‘PBM’’) administering pre4 scription drug benefits on behalf of a Federal health care 

5 program, either directly or through an affiliate of such 

6 PBM, shall, on behalf of such program— 

7 (1) reimburse an in-network pharmacy for the 

8 ingredient cost of a prescription drug in an amount 

9 equal to the sum of— 

10 (A) the national average drug acquisition 

11 cost for the drug on the day of claim adjudica12 tion (or, in the case of a drug that does not ap13 pear on the national average drug acquisition 

14 cost index, the wholesale acquisition cost for 

15 such prescription drug); and 

16 (B) an amount equal to 2 percent of the 

17 amount described in subparagraph (A), or $25, 

18 whichever is less; 

19 (2) pay an in-network pharmacy a professional 

20 dispensing fee that is equal to the professional dis21 pensing fee paid by the State in which the pharmacy 

22 is located under title XIX of the Social Security Act 

23 (42 U.S.C. 1396 et seq.) for dispensing a prescrip24 tion drug; and 

25 (3)(A) subject to subparagraph (B), calculate a 

26 beneficiary’s cost sharing requirement for a prescripVerDate Sep 11 2014 21:59 Aug 19, 2024 Jkt 049200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H9096.IH H9096

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1 tion drug at the point of sale based on a price that 

2 is reduced by an amount equal to at least 80 percent 

3 of all rebates received in connection with the dis4 pensing of the prescription drug; or 

5 (B) in the case of a prescription drug for which 

6 the rebate cannot be determined at the point of sale, 

7 calculate a beneficiary’s cost sharing requirement for 

8 a prescription drug at the point of sale based on a 

9 price that is reduced by an amount equal to 80 per10 cent of the lesser of the average aggregate rebate for 

11 such drug in the previous calendar year, or the high12 est possible rebate that can be received for such 

13 drug. 

14 (b) PROHIBITED ACTIONS.—A PBM administering 

15 prescription drug benefits under a Federal health care 

16 program shall not— 

17 (1) engage in steering; 

18 (2) engage in any practice that restricts a bene19 ficiary from using any in-network pharmacy to fill a 

20 prescription drug; 

21 (3) charge a beneficiary more for a prescription 

22 drug than the amount of reimbursement made to the 

23 pharmacy that dispenses such drug; 

24 (4) require a beneficiary to obtain a brand 

25 name prescription drug when a lower cost, AB-rated 


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1 generic version of such brand name drug is avail2 able; 

3 (5) engage in spread pricing; 

4 (6) lower, impose a fee, or otherwise make an 

5 adjustment to a prescription drug claim at the time 

6 the claim for such drug is adjudicated, or after the 

7 claim is adjudicated, that in any way reduces the 

8 amount a pharmacy is reimbursed for such drug 

9 pursuant to subsection (a), including a fee charged 

10 to a pharmacy even if such fee is not tied to a pre11 scription drug claim; or 

12 (7) engage in any practice that bases pharmacy 

13 reimbursement for a prescription drug on pharmacy, 

14 patient, or any other outcomes, scores, or metrics, 

15 provided that nothing shall prohibit pharmacy reim16 bursement, in addition to reimbursement pursuant 

17 to subsection (a), for providing care and services 

18 within a pharmacy or a pharmacist’s applicable 

19 State scope of practice. 

20 (c) RECOUPMENT OF FUNDS PURSUANT TO

21 AUDIT.—A PBM may recoup funds pursuant to an audit 

22 in compliance with applicable Federal and State law in 

23 which— 

24 (1) an overpayment or misfill was found to have 

25 occurred; or 


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1 (2) in the case of fraud, provided that all 

2 amounts recouped be passed back to the applicable 

3 Federal health care program. 

4 (d) ENFORCEMENT.— 

5 (1) IN GENERAL.—A PBM, or any person act6 ing on behalf of a PBM, that knowingly and willfully 

7 violates this Act shall be guilty of a felony and, upon 

8 conviction thereof, shall be fined not more than 

9 $1,000,000 for each act in violation, or imprisoned 

10 for not more than 10 years, or both. 

11 (2) CIVIL ACTION.—A person may bring a civil 

12 action for violation of this Act for the person and 

13 the United States Government. The action shall be 

14 brought in the name of the United States Govern15 ment. The action may be dismissed only if the court 

16 and the United States Attorney General give written 

17 consent to the dismissal and their reasons for con18 senting. Any such action shall be subject to the same 

19 terms, conditions, and provisions set forth in section 

20 3730 of title 31, United States Code, which are 

21 hereby incorporated into this Act for purposes of a 

22 civil action brought against a PBM, or any person 

23 acting on behalf of a PBM, that knowingly and will24 fully violates this Act. 

25 (e) DEFINITIONS.—In this section: 


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1 (1) AFFILIATE.—The term ‘‘affiliate’’ means an 

2 entity, including a pharmacy, that directly or indi3 rectly through one or more intermediaries— 

4 (A) owns, controls, or has an investment 

5 interest in a PBM; 

6 (B) is owned, controlled by, or has an in7 vestment interest holder who is a PBM; or 

8 (C) is under common ownership or cor9 porate control of a PBM. 

10 (2) BENEFICIARY.—The term ‘‘beneficiary’’ 

11 means a person who receives prescription drug bene12 fits pursuant to a Federal health care program. 

13 (3) COST SHARING REQUIREMENT.—The term 

14 ‘‘cost sharing requirement’’ means any coinsurance 

15 or deductible imposed on a beneficiary for a pre16 scription drug furnished under a Federal health care 

17 program. 

18 (4) FEDERAL HEALTH CARE PROGRAM.—The 

19 term ‘‘Federal health care program’’ means a pre20 scription drug plan under part D of title XVIII of 

21 the Social Security Act, an MA–PD plan under part 

22 C of such title, a managed care entity (as defined 

23 in section 1932(a)(1)(B) of the Social Security Act 

24 (42 U.S.C. 1396u–2(a)(1)(B)), the Federal employ25 ees health benefits plan under chapter 89 of title 5, 


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1 United States Code, or the TRICARE program (as 

2 defined in section 1072 of title 10, United States 

3 Code). 

4 (5) IN-NETWORK PHARMACY.—The term ‘‘in5 network pharmacy’’ means a pharmacy that is li6 censed by the State board of pharmacy in the State 

7 in which such pharmacy is located, that fills or seeks 

8 to fill a prescription for a prescription drug for a 

9 beneficiary, and is not an excluded entity and does 

10 not have an owner or employee who is on a list of 

11 excluded individuals or entities maintained by the 

12 Office of Inspector General pursuant to section 1128 

13 of the Social Security Act (42 U.S.C. 1320a–7). 

14 (6) PHARMACY BENEFITS MANAGER.—The 

15 term ‘‘pharmacy benefits manager’’ means a person, 

16 business entity, affiliate, or other entity that per17 forms pharmacy benefits management services. 

18 (7) PHARMACY BENEFITS MANAGEMENT SERV19 ICES.—The term ‘‘pharmacy benefits management 

20 services’’— 

21 (A) means the managing or administration 

22 of a plan or program that pays for, reimburses, 

23 and covers the cost of prescription drugs and 

24 medical devices; and 


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1 (B) includes the processing and payment 

2 of claims for prescription drugs and the adju3 dication of appeals or grievances related to the 

4 prescription drug benefit. 

5 (8) PRESCRIPTION DRUG.—The term ‘‘prescrip6 tion drug’’ means a prescription drug covered by a 

7 Federal health care program that is dispensed to a 

8 beneficiary for self-administration. 

9 (9) REBATE.—The term ‘‘rebate’’ means any 

10 payments and concessions that accrue to a PBM or 

11 the plan sponsor client of such PBM, directly or in12 directly, including through an affiliate, subsidiary, 

13 third party, or intermediary, including an off-shore 

14 entity or group purchasing organization, from a 

15 pharmaceutical manufacturer, its affiliate, sub16 sidiary, third party, or intermediary, including pay17 ments, discounts, administration fees, credits, incen18 tives, or penalties associated directly or indirectly in 

19 any way with claims administered by such PBM on 

20 behalf of a Federal health care program. 

21 (10) SPREAD PRICING.—The term ‘‘spread pric22 ing’’ means the practice of a PBM charging a Fed23 eral health care program more for a prescription 

24 drug than the amount such PBM pays a pharmacy 

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1 tion fees, discounts, or adjustments, provided that 

2 nothing herein shall be construed to allow post-sale 

3 or post-adjudication fees, discounts, or adjustments 

4 where otherwise prohibited by law. 

5 (11) STEERING.—The term ‘‘steering’’ means— 

6 (A) directing, ordering, or requiring a ben7 eficiary to use a specific pharmacy or phar8 macies, including an affiliate pharmacy, for the 

9 purpose of filling a prescription or receiving 

10 services or other care from a pharmacist; 

11 (B) offering or implementing health insur12 ance plan designs that require a beneficiary to 

13 utilize a pharmacy or pharmacies, including an 

14 affiliate pharmacy, or that increases costs to a 

15 Federal healthcare program or a beneficiary, in16 cluding requiring a beneficiary to pay the full 

17 cost for a prescription drug when such bene18 ficiary chooses not to use a PBM affiliate phar19 macy; 

20 (C) advertising, marketing, or promoting a 

21 pharmacy, including an affiliate pharmacy, over 

22 another in-network pharmacy; 

23 (D) creating any network or engaging in 

24 any practice, including accreditation or 

25 credentialing standards, day supply limitations, 


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1 or delivery method limitations, that exclude an 

2 in-network pharmacy or restrict an in-network 

3 pharmacy from filling a prescription for a pre4 scription drug; or 

5 (E) directly or indirectly engaging in any 

6 practice that attempts to influence or induce a 

7 pharmaceutical manufacturer to limit the dis8 tribution of a prescription drug to a small num9 ber of pharmacies or certain types of phar10 macies, or to restrict distribution of such drug 

11 to non-affiliate pharmacies. 

12 SEC. 3. IMPROVING PRESCRIPTION DRUG TRANSPARENCY 

13 UNDER THE MEDICAID PROGRAM. 

14 Section 1927(f) of the Social Security Act (42 U.S.C. 

15 1396r–8(f)) is amended— 

16 (1) in the subsection heading, by striking ‘‘RE17 TAIL’’ and inserting ‘‘COVERED OUTPATIENT DRUG’’; 

18 and 

19 (2) in paragraph (1)— 

20 (A) in the paragraph heading, by striking 

21 ‘‘RETAIL’’ and inserting ‘‘COVERED OUT22 PATIENT DRUG’’; 

23 (B) in subparagraph (A)(i), by striking 

24 ‘‘retail community pharmacy’’ and inserting 

25 ‘‘pharmacy that dispenses covered outpatient 


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1 drugs, including a retail community pharmacy, 

2 mail-order pharmacy, specialty pharmacy, nurs3 ing home pharmacy, long-term care facility 

4 pharmacy, hospital pharmacy, or clinic phar5 macy (but not including a charitable pharmacy 

6 or a not-for-profit pharmacy)’’; 

7 (C) in subparagraph (C)— 

8 (i) in clause (i)— 

9 (I) by striking ‘‘retail’’; and 

10 (II) by striking ‘‘prescription’’ 

11 and inserting ‘‘covered outpatient’’; 

12 and 

13 (ii) in clause (ii), by striking ‘‘retail 

14 community’’; 

15 (D) in subparagraph (D)(ii), by striking 

16 ‘‘retail’’; 

17 (E) in subparagraph (E), by striking the 

18 term ‘‘retail’’ each place it appears; and 

19 (F) by adding at the end the following new 

20 subparagraphs: 

21 ‘‘(F) SURVEY REPORTING.—Each State 

22 shall require that any pharmacy in such State 

23 that receives any payment, reimbursement, ad24 ministrative fee, discount, or rebate related to 

25 the dispensing of a covered outpatient drug to 


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1 an individual receiving benefits under this title, 

2 regardless of whether such payment, fee, dis3 count, or rebate is received from the State, a 

4 managed care entity, or from a pharmacy bene5 fits manager that has a contract with a State 

6 or managed care entity, shall respond to sur7 veys of drug prices conducted pursuant to sub8 paragraph (A). 

9 ‘‘(G) SURVEY INFORMATION.—The Sec10 retary shall make information on national drug 

11 acquisition prices obtained under this para12 graph publicly available. Such information shall 

13 include at least the following: 

14 ‘‘(i) The monthly response rate of the 

15 surveys conducted pursuant to subpara16 graph (A), including a list of the phar17 macies described in subparagraph (F) that 

18 did not respond to such survey. 

19 ‘‘(ii) The sampling frame and number 

20 of pharmacies sampled monthly. 

21 ‘‘(iii) Information on price concessions 

22 to each pharmacy, including discounts, re23 bates, and other price concessions, to the 

24 extent that such information is available 

25 during the survey period. 


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1 ‘‘(H) LIMITATION ON USE OF APPLICABLE

2 NON-RETAIL PHARMACY PRICING INFORMA3 TION.—No State or Federal health care pro4 gram shall use pricing information reported by 

5 applicable non-retail pharmacies to develop or 

6 inform reimbursement rates for retail commu7 nity pharmacies.’’. 

Æ 


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